United States: You Can't Touch My Hair: California Bans Racial Discrimination Based On Hairstyle With CROWN Act

On July 3, California made history by enacting the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act, becoming the first state to ban discrimination on the basis of hairstyles associated with race. The CROWN Act adds hairstyles that are closely associated with race to the class of protected racial characteristics under state law. The measure was introduced as Senate Bill 188 on January 30, 2019, and steadily progressed through the California Legislature. The new law will take effect on January 1, 2020.

Expansion of California FEHA

The CROWN Act expands the definition of "race" under the California Fair Employment and Housing Act (FEHA) to include both hair texture and protective hairstyles that are closely associated with race. The Act defines "protective hairstyles" as those including braids, locks, and twists, but notably, the law clarifies that this is not an exhaustive list. The law clearly states that discrimination based on a protected characteristic is banned as well as discrimination because a person is perceived as having a protected characteristic or because a person has an association with someone who has or is perceived to have any of these characteristics. While the law directly prohibits employment discrimination based on hairstyles associated with race, it also affirms that FEHA exceptions for bona fide occupational qualifications and security regulations still may apply.

The CROWN Act explains that the legislation stems from America's history of laws and societal norms that considered "blackness" to be unprofessional and instead linked professionalism to European features and mannerisms. The explanation notes that while American society has made progress, African-American hair and the styles associated with black hair can still often be a focus of discrimination and therefore, a proxy for racial discrimination. The CROWN Act bans not only general employment discrimination, but specifically bars dress codes and grooming policies that prohibit "natural hair, including afros, braids, twists, and locks," which would have a disparate impact on black applicants and black employees.

Nationwide Trend

Although California is the first jurisdiction to enact a statewide law banning discrimination based on hairstyles, earlier this year, New York City adopted an ordinance with similar language to protect job applicants and workers from discrimination based on natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.1

Meanwhile, a related bill that would apply statewide is before New York Governor Andrew Cuomo, who is expected to sign it into law. The New York bill, S. 6209, would incorporate "traits historically associated with race" into the definition of the term "race" for purposes of racial discrimination. The legislation states that hair texture and protective hairstyles are traits associated with race, and includes in its definition of "protective hairstyles" braids, locks, and twists. It would take effect immediately upon passage.

New Jersey also has a very similar measure pending that seeks to ban discrimination on the basis of hair. The New Jersey bill, A. 5564, incorporates a similar update to the definition of "race" to include hair texture, hair type, and protective hairstyles. The bill defines "protective hair styles" identically to the New York legislation, and would also become effective immediately upon enactment.

The question of whether banning certain hairstyles is race discrimination will likely arise more frequently around the country as more states begin to include hairstyle in the definition of race. In response to previous claims of discrimination on the basis of hair, the Equal Employment Opportunity Commission (EEOC) has taken the stance that "hair texture" is a protected trait,2 but courts have been divided on the topic.3

Next Steps

Employers operating in California should review their dress codes, grooming policies and general hiring and employment practices. California employers should also consider whether they may need to implement or update their workplace diversity training. Additionally, given the adoption of a similar ordinance in New York City, as well as similar pending legislation in several other states, employers should monitor legislative and regulatory developments in any jurisdictions in which they operate and review and update their policies and practices accordingly.

Footnote

1 Emily Haigh and Devjani Mishra, New York City Commission on Human Rights Provides Legal Enforcement Guidance on Race Discrimination on the Basis of Hair, Littler ASAP (Feb. 21, 2019).

2 EEOC Compliance Manual § 15-II (Apr. 19, 2006).

3 See, e.g., Millin v. McClier Corp., No. 02 Civ. 6592 (GEL), 2005 WL 351100, at *5 (S.D.N.Y. Feb.14, 2005) ("a reasonable factfinder could construe comments regarding [plaintiff's] dreadlocks as related to his race, religion, and/or national origin [given that] dreadlocks are commonly associated with African-American, Rastafarian, and Jamaican culture"). But see EEOC v. Catastrophe Mgmt. Sols., 876 F.3d 1273 (11th Cir. 2017) (finding that dreadlocks are not an immutable protected trait associated with race under Title VII).

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